한국의 사적 집행 사례와 시사점

Abstract

This article reviews major damages and injunction cases for the violation of Monopoly Regulation and Fair Trade Act (hereinafter “MRFTA”) and aims to obtain policy implication in the future. Starting from Military supply oil rigging case, Korean courts have addressed various legal issues such as indirect purchaser claims, causation, damages estimation, evidentiary value of appraisal, and pass-on defense. In addition, private enforcement cases provide following three noticeable points. (1) The majority number of damages lawsuits have been triggered by the action of Korea Fair Trade Commission (hereinafter “KFTC”) and this trend is expected to continue. (2) Factors such as transaction data keeping, economic analysis capability and financial resources tend to generate the binikbin buikbu (rich-get-richer, poor-get-poorer) phenomenon in litigation outcomes. (3) Courts generally depend on the economic analysis with respect to damages assessment in most cartel cases. From a public policy perspective, following points are noted. First, private enforcement of MRFTA such as damages claims and injunction can hardly detect any undisclosed anticompetitive behaviors and thus seems difficult to replace public enforcement. Rather, private plaintiffs are more likely to rely on KFTC to access evidence proving defendant’s violation of MRFTA. Therefore, it desirable to operate public enforcement focusing on detection and punishment of violations and private enforcement conducts complementary role of damage recovery. In addition, to improve the binikbin buikbu phenomenon, a special care is needed for petit victims. In this regard, the introduction of a class action lawsuit would be helpful. On the other hand, the introduction of punitive damages is not expected to improve the binikbin buikbu phenomenon, as long as the difficulties in accessing evidence and fund-raising consist, punitive damages would be of little help for petit victims.